Citation Nr: A21018455 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 190925-33521 DATE: November 18, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED Service connection for myofascial pain syndrome, claimed as full body chronic pain syndrome, is remanded. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's service-connected asthma is of sufficient severity to preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. § 501; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from August 1996 to August 1999. In June 2019, the Veteran filed a claim for service connection for gulf war syndrome and chronic pain syndrome, as well as a TDIU. The rating decision on appeal was issued in September 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the September 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran appealed the denial of service connection for chronic pain syndrome and TDIU and elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Entitlement to individual unemployability The Veteran seeks a TDIU. He contends that his service-connected asthma renders him unemployable. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is service connected for asthma (rated 10 percent, from February 2001 to October 2008, 30 percent, from October 2008 to August 2010, and 60 percent from August 2010 to present). Based on the forgoing, the Veteran has one disability rated 60 percent. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. The Veteran served in the Army until August 1999. After discharge, he served with the Pennsylvania National Guard where he was medically discharged partially due to his asthma. The Veteran has a high school education and no further education or training outside of his military experience. From April 2000 until April 2002, the Veteran held several positions including as a truck driver, mechanic, school van driver, mattress delivery driver, and machine operator. See August 2019 VA Form 21-8940. The Veteran reported at his Board hearing that he was having breathing problems during this period and was falling down often. He had at least one hospitalization during this time where he required nebulizer treatment for his asthma. The Veteran began receiving Social Security Disability benefits in as of July 2001 due to osteoarthritis. During his medical examination, the Veteran reported severe asthma attacks about two to three times per month. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his asthma. At his most recent VA examination for asthma, in July 2019, the VA examiner indicated that the Veteran was unable to do any physical exertion beyond walking more than 200 feet without becoming short of breath. Tasks requiring extended walking or running in stressful situations (cold weather, hot and humid weather) may exacerbate the Veteran's asthma. The Veteran reported spending approximately 18-22 hours in bed or on the couch every day. See May 2021 Hearing Transcript. He expressed a sincere desire to work but indicated that his physical ailment makes that impossible. Given the forgoing, the evidence is in relative equipoise as to whether the Veteran's service-connected disability precludes him from securing and following a substantially gainful occupation consistent with his education, skills, training, and work history. The Veteran only has a high school education, has been out of the workforce for several years, and has mainly worked in mainly driving and manual labor occupations. Based on the current state of the Veteran's asthma as evidence in the most recent VA examination, it is likely that the Veteran would be unable to secure and follow a substantially gainful occupation. Accordingly, a TDIU is warranted. REASONS FOR REMAND 1. Service connection for myofascial pain syndrome, claimed as full body chronic pain syndrome is remanded. The Veteran seeks service connection for myofascial pain syndrome. A review of the current records available indicates that the Veteran has experienced myofascial pain syndrome since at least October 18, 2001, just 15 months after his discharge from military service. Additionally, physical therapy records show extensive treatment for both myofascial pain syndrome and right knee pain. Despite this evidence of a disability and pain since 2001, no medical examination and opinion was obtained to determine the etiology of the Veteran's myofascial pain syndrome. As the Board finds that pre-decisional errors in the duty to assist have occurred, the Veteran's claim of entitlement to service connection for myofascial pain syndrome is remanded for development and readjudication. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to investigate the etiology of his myofascial pain syndrome. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to answer the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran's myofascial pain syndrome began in or was otherwise caused by the Veteran's active military service? Why or why not? In providing the requested opinion, the examiner should address the contention that complaints of knee pain during military service marked the onset of the myofascial pain syndrome, as well as his hearing testimony that he began having significant joint pain in service. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.